NAC issues statement on Jon Jones drug tests

March 2, 2019

Two of Jon Jones’ latest drug tests have turned up positive for the same banned substance as in the past.  In response, the Nevada State Athletic Commission has issued a statement.

“Mr. Jones has been cooperative with the NSAC and has submitted to multiple drug tests conducted by the NSAC, the Voluntary Anti-Doping Agency (VADA), and the United States Anti-Doping Agency (USADA).”

On back-to-back days, there were findings of DHCMT M3 detected 40 pg/mLm.  However, there were also tests that provided no adverse findings.

The statement was done in anticipation of questions regarding Jon Jones’ testing.

Notably, there was no fight press conference for the UFC 235 fighters.  Likely, in anticipation of questions concerning Jones’ drug tests.  This past December, Jones took heat from a reporter about his failed drug tests.  From the UFC perspective, the decision not to conduct a press conference for press week likely helped the company control the story.

Jeff Novitsky took questions about it during the full media scrum on Friday.  In response to the NSAC statement, Novitsky indicated that it “would not affect the fight.”

“Based on the amount of testing that he’s have had over the last two months, these recent low level positives are the best evidence of what these experts are telling us,” said Novitsky.  He indicated that this would mean that there would be no re-administration of the banned substance and no performance enhancing benefit.

He then went on to lay out the case that for their assertion that Jones is not taking PEDs and the banned substances that have been found are not new and are not providing benefit.

19-02-28 Jon Jones Statement by on Scribd

Payout Perspective:

Maybe the best job this week the UFC has done was to mute the Jon Jones drug doping story.  With Jones complying with the requests to test with USADA and VADA on a weekly (if not daily) basis as fight day neared, its clear that the positive tests for a banned substance are hard to explain.  But, one thing seems to be clear.  Everyone is doing there best to clear Jones’ name.  Jones was not put on provisional suspension under the terms of the UFC Anti-Doping Policy and none of the protocol under the policy is being implemented.  Likely, due to the uncommon occurrence that is happening.  The question still remains how and why Jones is failing some drug tests.

Jones tests positive for metabolite of oral Turinabol per VADA test

January 23, 2019

Jon Jones has tested positive for the long-term M3 metabolite of oral turinabol according to drug tests administered by the Voluntary Anti-Doping Agency. It appears as though Jones has tested positive for this banned substance, that he will not face any punitive measures per the guidelines of the UFC Anti-Doping Policy.

As most know, Jones had tested positive for turinabol prior to his fight this past December with Alexander Gustafsson.  However, it was deemed to be as a remnant of turinabol 15 months prior.  Of course, USADA and Jones could not find the pathology of the banned substance in Jones’ system.

It is interesting to note that it was reported that drug test taken by Jones and administered by the California State Athletic Commission after the Gustafsson fight came up negative for turinabol.  Yet, the VADA test came up with the banned substance.

Payout Perspective:

While we have been cautioned not to jump to opinions on this, one has to speculate how Jones’ CSAC test on the night of the fight came up negative for oral turinabol metabolites but the VADA test shows a different result.  Are we to conclude that Jones is an anomaly?  While the UFC claims that another fighter is dealing with a similar situation, the scientific studies behind this show that this does not happen with humans.  The commission and regulators decry that Jones will not be given a free pass for every failed drug test, one has to wonder what to do with Jones except for pressing the media not to report on this.

MMA Payout will continue to monitor this situation.  It will be an interesting situation when Jones appears before the Nevada Athletic Commission as it did not issue Jones a license for his December fight which precipitated the late move.

MMA Payout Year in Review: No. 2 – Jon Jones returns to the UFC with controversy

December 31, 2018

Jon Jones returned to the UFC on Saturday night at UFC 232 at The T-Mobile Arena in Las Vegas, Nevada.  The Forum in Inglewood, California.  He had a masterful performance in decimating Alexander Gustafsson was marred as we know.

Jones tested positive for Turinabol, the drug that caused his previous suspension.  It showed up in an early December test and later revealed to be in tests in August of 2018.  Despite these finding USADA and the California State Athletic Commission were adamant that they not destroy Jon Jones’ career due to failing a drug test.  CSAC did not know of the August tests prior to giving Jones his license back which seems all the shadier since USADA and the UFC knew of these findings but did not provide them to Andy Foster.

The CSAC required that Jones register with VADA to fight in California.  It was intimated at the hearing that California would pay for his enrollment.  Foster had chartered a plane to drug test Jones prior to his CSAC hearing.  But, the drug test was at a non-WADA authenticated drug lab in San Dimas, California according to an MMA Fighting report.

The event was moved on Sunday of fight week to LA from Vegas.  The cost to do this was $6 million according to Dana White at the pre-fight press conference in LA on Thursday.  Flights were chartered, a building was secured (how long in advance would be interesting to know) and schedules were rearranged.  The underlying innocent victim of this was the fans that flew to Vegas or were flying to Vegas and had booked hotel rooms.  They were out money and lost out.

The good news is that the SoCal fans, who lost a UFC event in January when the company postponed its January 26 PPV event, came through with a sellout at The Forum.

As for the drug tests, picograms were used as a talking point to show the small amount of banned substance in his system stating that this could not have yielded any performance enhancement.  This, in itself, would seem like a faulty argument if your goal is for zero tolerance of banned substances.  Still, this was the talking point shoved down the media’s throat.  And yet, when a journalist asked a question of Jones and his tests, the former and now current UFC Light Heavyweight Champion called for “better journalism.”

Similarly, he left an interview with TSN because it was “killing his vibe.”  For both instances of blissful ignorance, he apologized.

Jeff Novitsky did the media rounds on Joe Rogan and then one on Friday before the event.  While both were fine, it revealed a lot of issues with the UFC Anti-Doping Program.  Notably, it was clear that the UFC and USADA were defending Jon Jones.

Also of importance, the conclusion was that the UFC needed to move the fight to save the PPV.

Notwithstanding the issues with Jones (and we probably won’t know about his in-competition tests for a while), its clear that a showdown with Daniel Cormier is inevitable.  Despite Cormier relinquishing the Light Heavyweight title the day before the fight and retiring soon, it’s clear that the two are on a collision course.  It will be a big PPV fight but the questions will remain about Jones.

10. MMA Payout Year in Review: No. 10 – The UFC Antitrust Lawsuit rolls on

9. MMA Payout Year in Review: No. 9 – NLRB denies Leslie Smith claims against Zuffa

8. MMA Payout Year in Review: No. 8 – Golden Boy promotes first MMA event

7. MMA Payout Year in Review: No. 7 – DAZN enters sports streaming market

6. MMA Payout Year in Review: No. 6 – Josh Barnett “wins” at USADA arbitration, but still leaves promotion

5. MMA Payout Year in Review: No. 5 – PFL debuts

4. MMA Payout Year in Review: No. 4 – ONE making moves, signs media deal with Turner

3. MMA Payout Year in Review: No. 3 – UFC signs media rights deal with ESPN

Jon Jones enrolls in VADA testing

December 25, 2018

On Monday, ESPN reported that Jon Jones has enrolled into VADA as a result of UFC 232 being moved to California from Nevada.  Previously, Jones had turned down the suggestion by the California commissioners to enroll in VADA.

According to the ESPN story, a condition of Jones receiving his license was enrolling in the VADA program.  Jones is also committed to the UFC Anti-Doping Program conducted by USADA.

UFC 232, which occurs this Saturday was abruptly changed from Las Vegas, Nevada to Inglewood, California due to an out-of-competition test which was flagged by USADA for metabolites of the same banned substance Jones tested positive for in July 2017.  The UFC and USADA indicated that the test were remnants from July 2017 despite the fact that he had cleared several drug tests between then and now.

Payout Perspective:

Putting aside the PR gaffes going on here with Jones and his lawyer deciding not to let Jones go into VADA testing last week (with the knowledge of the failed out-of-competition test) and now deciding to sign up for it when essentially forced into the program, the question of this event is an issue.  Displaced fighters and fans have really made this event hard to support.  With additional testing, it puts a little more stress on Jones and also brings up the concern that he may not pass a drug test which would make this whole situation another catastrophe with Jon Jones at the center.

UFC 232 moves to LA due to Jon Jones drug test

December 23, 2018

Due to a drug test which revealed metabolites related to Turinabol in an out-of-competition test of Jon Jones, UFC 232 is moving from the T-Mobile Arena in Las Vegas, Nevada to The Forum in Inglewood, California.  The reason being is due to a licensing issue with the state of Nevada.

An out of competition drug test earlier this month from Jones turned up Turinabol, the same substance that caused his 15-month suspension.  Again, USADA indicated it had no idea where the Turnabol came from and there was some scientific things that were explained by UFC executive Jeff Novitsky.  But, to be honest, not of that really matters.

Why?  Well, what I explained above and from reading multiple reports indicates that Jon Jones had a test flagged for a banned substance.  This also means he failed a drug test.  Brett Okamoto succinctly breaks it down

How a residual amount of the substance can stay in one’s system for over a year is baffling.

USADA does provide an explanation:

Last week the California State Athletic Commission gave approval to Jones for a temporary license despite its concerns with how USADA handled Jones’ case.  Rather than take Jones off the card, it has moved the entire show to another state where Jones has a license.

This did not take into consideration the money expended by fans and athletes for attending the event this Saturday.  The UFC indicated fans will get refunds on the Nevada tickets but it does not account for the hotel and airfare fans had expended.

Payout Perspective:

This is a complete public relations disaster by the UFC.  The only saving grace for the UFC is for Dana White to throw his tantrum similar to the one he gave about Greg Hardy being in the UFC.  Then, he’ll just enlist some folks to shout down those questioning him.  Why one fighter has this much importance and is getting the benefit of the doubt once again reflects that the UFC is built on just a handful of stars.  And those stars take advantage of the UFC just as much as the UFC takes advantage of them.  The good news, is the UFC probably knows that they are going to score on PPV no matter the inconvenience of the fans.

As for the UFC Anti-Doping Policy, USADA is showing its flexibility in dealing with Jon Jones.  Not only has it once again emphasized that this test result was not his fault, it is not sanctioning him.  Yet, it cannot invest on determining why Jones had this in his body in the first place.  Moreover, in discussing this issue, it skirts the issue about Jones failing the drug test which would likely take him off this card.

Notably, California suggested Jones enroll in VADA to clarify any issues with his image.  Jones denied it.  And his opponent this Saturday, Alexander Gustafsson noticed.

He does mean VADA testing above but its clear that he doesn’t believe in Jon Jones’ drug test capabilities.

Jon Jones declines California’s suggestion of VADA testing

December 19, 2018

MMA Junkie reports that Jon Jones is skipping VADA testing despite the recommendation by the California State Athletic Commission earlier this month.  He is scheduled to return to the Octagon on December 29th at UFC 232.

CSAC recently granted Jones a license to fight ahead of next Saturday’s Light Heavyweight showdown with Alexander Gustafsson.  Some of the commissioners at the hearing opined that maybe getting tested by VADA would dismiss any further speculation about Jones using PEDs.

Via MMA Junkie:

As a sweetener, the commission essentially agreed to pay for the extra effort, subtracting the costs of VADA’s fees from a $205,000 fine Jones paid for a positive steroid test at UFC 214 that also cost him his license. Initially, Jones appeared open to the idea of testing. Jacobs later qualified that his client was “agreeable in principle” to VADA but needed to see the fine print of what was required.

Howard Jacobs, Jones’ attorney, told MMA Junkie that there were “some issues” with the CSAC suggestion. VADA is known to many as an alternative to USADA when it comes to athlete drug testing.  It conducts comprehensive “Olympic style” drug testing and passes test results directly to athletic commissions.  It also does not conduct its own results management.

Jones had failed a drug test at UFC 214 held in Anaheim, California in July 2017 which required him to return to the jurisdiction of California to seek a license.

Payout Perspective:

In addition to the NSAC testing, Jones will be subject the standard USADA testing under the UFC Anti-Doping Program.  Declining to the VADA testing can be seen as a hit against his public image but I’m not sure if its too much of a hit considering that most of his strongest critics are MMA fans.  The additional VADA testing can be just intrusive especially if he is still subject to Nevada and USADA.  Also, there is an inference that there were additional strings attached.  Yet, if turns up with another failed test, this could spell the end for Jones.

Deontay Wilder files appeal brief in Povetkin Meldonium case

October 22, 2018

Deontay Wilder filed its appeal brief in requesting that the court overturn the trial court’s ruling in favor of World of Boxing and Alexander Povetkin.  The appeal highlights an incongruent ruling by the court which appeared to defer to the World Boxing Council in its determination of Povetkin’s drug test failure.

The match between the two heavyweights was set by the World Boxing Council to take place in May 2016 in Moscow, Russia.  Wilder was training in England when he learned that Povetkin and tested positive for a banned substance.  Wilder decided to return to the United States instead of going to Russia believing that the fight was cancelled due to the failed drug test.  Povetkin and his promotion, World of Boxing claims that Wilder breached the contract when he failed to go to Russia for the match which prompted the WBC to cancel the fight.

In limbo is a purse of $7.15 million still in escrow.  The trial court granted World of Boxing’s request for the escrow money to be return.  Of course, Wilder believed that he should be granted his share of the money since Povetkin failed the drug test.  A lawsuit filed by the heavyweight champion ensued in which WOB and Povetkin filed counterclaims against Wilder.

From our post this past April:

In February 2017, a jury just took 32 minutes to determine that Povetkin took the banned substance Meldonium post-January 1, 2016, however that did not mean much in the outcome of this Summary Judgment motion.

One of the overarching issues in the lawsuit as to who is to blame for the failed fight in Russian in May 2016.  You might infer from the news of a failed drug test from Povetkin that it was the Russian.  However, Povetkin claimed that Wilder’s failure to appear in Russia forced the hand of the regulating body, the WBC, to call off the fight.

The WBC Bout Agreement takes precedent here as the Court examines the contract in applying basic contract principles.  But in its application, there seem to be things that don’t make sense.

“We begin by noting that the Bout Agreement contains no language mandating that each fighter refrain from ingesting banned substances.”

The inference one might yield from this sentence of the Court opinion is that tis ok to used banned substances.  Based on this, the Court held that Povetkin did not breach the Bout Agreement because it cannot conclude when/if he ingested the banned substance Meldonium. Obviously, this is opposite the jury finding.

The good news for Wilder is that there was no finding of a breach of the Bout Agreement when Wilder did not go to Russia for the fight with Povetkin.  The Court notes, “[t]here is simply no evidence that the WBC’s postponement decision was a “normal or foreseeable consequence” of Wilder’s actions, or that Wilder’s acts otherwise caused the WBC’s decision.”  Povetkin and World of Boxing sought $2.5 million in liquidated damages that was part of the Escrow Agreement.  “While the WOB Parties argue that it was Wilder’s failure to appear in Moscow, rather than Povetkin’s positive test result, that caused the WBC to postpone the Bout…no reasonable jury could indulge in the speculation that would be required to conclude that this was so,” stated the Court opinion.  It went on to state, “[B]ecause a reasonable jury could not find that any breach by the Wilder Parties proximately caused the WOB Parties’ damages, the Wilder Parties’ motion for summary judgment dismissing the WOB Parties’ claim for breach of the Bout Agreement is granted.”

As for the escrow funds, World of Boxing is entitled to its release held in escrow but no interest because no judgment was entered against Wilder.

The claims for defamation filed by Povetkin remain although they may be dismissed pending further movement in this case.

The Court opinion seems to fly in the face of the original jury finding that Povetkin took Meldonium post-January 2016.  The opinion seems to lean entirely on the WBC Agreement for its determination on its procedure in determining the status of Povetkin based upon his drug tests.  The Court quotes WBC Rules and Regulations when it notes, “the WBC may in its discretion consider all factors in making a determination regarding responsibility, relative fault, and penalties, if any.”

The WBC did not issue a ruling on Povetkin’s positive drug test until August 17, 2016.  It noted that it called the bout off and reserved any further ruling.  It then determined that it was not “possible to ascertain that Mr. Povetkin ingested Meldonium after January 1, 2016.  After two additional rulings by the WBC which opposed the August 17, 2016 ruling, it overturned the decision and stuck with its August ruling.  It based this on a study showing Meldonium having the ability to stay in one’s system for more than five months.  It also noted Povetkin had negative drug tests six other times.

The WBC seemed to be dragging its feet in this case as it put off the ruling on Povetkin despite the litigation moving ahead.  There’s also the issue of Povetkin’s positive test for ostarine which happened after the lawsuit began.  Yet, the WBC did not penalize him for this and even stressed negative drug tests notwithstanding the two positive tests for Meldonium and ostarine.

The appeal brief, which was filed in August 31, 2018, brought up the glaring disparity in issues regarding the WBC ruling and that of the jury trial.

Wilder notes that the WBC confirmed in its August 2016 ruling that the bout was called off due to Povetkin’s positive test.  In December 2016, Povetkin tested positive for another banned substance.  It issued a March 2017 ruling which doled out an indefinite suspension and a $250,000 fine.  But, in November 2017, it issued another ruling which amended the indefinite suspension to a fixed one-year fine and reaffirmed its ruling that it could not be found whether Povetkin ingested meldonium post-January 1, 2017.

Wilder points out that WOB’s attorney argued to the Court that “only the WBC, and not a jury, was competent to decide the issue, and that a jury verdict would merely be an advisory opinion.” Despite the trial judge’s disagreement, WOB attorney believed that the contractual agreement of the WBC would be the controlling factor in determining whether Povetkin took Meldonium.

However, Wilder believes that the District Court’s interpretation of the Bout Agreement was wrong.  Wilder argues that the “WBC does not have the discretion to resolve private disputes between parties to a contract.”  The Bout Agreement includes a clause which states that the parties “irrevocably accept and consent to the jurisdiction of” the District Court to “resolve any disputes arising out of” the Bout Agreement.” Wilder claims that whether or not Povetkin ingested Meldonium constituting a breach of the Bout Agreement is clearly a dispute arising out of the agreement, over which the District Court has exclusive jurisdiction.  Essentially, while the Bout Agreement gives discretion to the WBC, it does not supersede the authority of the courts to interpret the contract.  And Wilder argues, “[b]y cedeing the decision regarding whether Povetkin breached the Bout Agreement to the WBC,” it committed reversible error.  Additionally, the counterclaims filed by WOB and Povetkin reflect the authority of the courts over the WBC Bout Agreement.

Wilder also argued that even if the appellate court holds that the trial court was correct in holding that the WBC and not the trial court could determine whether the Bout Agreement was breached, it caused error in its application of the facts of the case.

Wilder cites the following press release from the WBC:

They also argue that the date of the bout is a material term in the contract.  Thus, whether or not the date of the bout was postponed is not relevant.  WOB asserts that Wilder breached the agreement due to his failure to fly to Russia for the intended fight.  Wilder cites several cases in which the exact date of the events is deemed essential to the terms of the contracts.

Following along the line of logic that the WBC had some authority in its contract, Wilder argues that the WBC delegated its duty to the trial court:

As a result, Wilder argues that the WBC applied a “strict liability” standard wherein if a jury found that Povetkin ingested Meldonium after January 1, 2017, he would be stripped of his mandatory challenger status which meant that his fight with Wilder would be off the table.

Wilder also indicates something amiss with what may be infers as a “quid pro quo” with Povetkin and the WBC. Pointing out the press release by the WBC, it seems as though if Povetkin paid his fine, he would be reinstated.

In a footnote of its brief, Wilder states that the trial court denied a request to reopen discovery on this limited issue but Wilder request this court again.

Finally, Wilder argues that he is entitled to the escrow property in the amount of $4,369,365 as a result of WOB’s breach of the Bout Agreement.

Payout Perspective:

This is a fascinating legal case premised on the basic tenets of a contract. The trial court’s decision to side with Povetkin and WOB in determining that the WBC would be the only entity capable of deciding whether Povetkin ingested Meldonium seems out of line with the job of the court to interpret the contract when a dispute comes before it. We have seen with the Austin Trout case that the Court has deferred to the drafter of the private contract despite the aggrieved party bringing a lawsuit. MMA Payout will continue to follow once WOB files its appellate brief.

Deontay Wilder and Alexander Povetkin head to appeal

May 25, 2018

The Deontay Wilder-Alexander Povetkin legal drama will not end.  The parties have given notice that they are appeal the federal district court’s decision.

Letter From Wilder 05.25.18 Appeal by JASONCRUZ206 on Scribd

The Southern District Court of New York has had a trial and summary judgment motions in this contentious lawsuit over whether Povetkin’s failed drug test for Meldonium was a breach of the fight contract between the parties or whether Wilder not heading to Russia, where the fight took place, was a breach of the contract.

Thus far, a jury found that Povetkin ingested Meldonium post-January 1, 2016.  The Court affirmed the jury decision after a Motion for Reconsideration and/or New Trial  by Povetkin (and his promoters at World of Boxing)was denied.  Yet, in litigating the other causes of action, the court determined on Summary Judgment that Povetkin did not breach the Bout Agreement although a jury trial determined that Povetkin ingested Meldonium and concluded that a VADA test on April 27, 2016 showed Meldonium in his system.  The court deferred to the WBC’s discretion to rule on culpability for its anti-doping program.  As such, the court concluded that since the WBC believed that Povetkin did not violate the Bout Agreement.

From our previous post on this issue:

In this case, after issuing several conflicting and indecisive rulings, the WBC finally decided on November 7, 2017 that notwithstanding the jury’s verdict in this case, it would adhere to its earlier decision that it was not possible to determine whether Povetkin ingested Meldonium after January 1, 2016.  In other words, the WBC exercised its discretion to determine that Povetkin did not violate the CBP [Clean Boxing Program, the drug testing entered into by the boxers].”

In addition, the Court has released the escrow funds held up by Deontay Wilder after the fight did not go forward.  However, the Court did not grant WOB the $2.5 million in liquidated damages that was included in the escrow agreement which would have been triggered if it was found that there was a breach.  The Court noted that there was not a judgment filed against Wilder and that his representatives made the objection for disbursement in accordance with the agreement.  The Court did not find a breach of implied covenant of good faith and fair dealing. It also did not find Wilder guilty of breaching the Bout Agreement for not showing up in Russia for the fight as the Court opines that there was no evidence of his absence for the fight in Russia caused the cancellation.

The District Court ordered the release of the money held in escrow of over $7.1 million dollars.

A cause of action by Povetkin for defamation against Wilder was not litigated, but its likely that this will be determined after the appeal.

Payout Perspective:

It only makes sense that this case was going to be appealed.  Both sides are appealing ruling from the court.  Wilder is appealing the Summary Judgment ruling which essentially overturned a trial court decision that Povetkin took Meldonium.  Povetkin might be seeking to go after Wilder for breach of the Bout Agreement and obtain a $2.5 million liquidated damages award that is a part of the escrow agreement.  The legal drama shall continue and MMA Payout will follow.

Wilder and Povetkin/World of Boxing legal drama not over yet

May 2, 2018

The Deontay Wilder-Alexander Povetkin legal drama continues despite a Motion for Summary Judgment motion that seemingly answered all the questions left in the lawsuit.  All, except for when World of Boxing (“WOB”), Povetkin’s promoters might recoup the money that has remained in escrow since the start of this dispute.

We’ve covered the exhaustive background of this case since the lawsuit was filed.  For background from beginning, check this post and for the most recent filing you can look here.

On April 25th, the court entered an Order which relied on a U.S. Supreme Court case, Hall v. Hall, which determined whether consolidated cases under the Federal Rules of Civil Procedure are “immediately appealable upon an order disposing of that case.”  In this case, the World of Boxing has a claim for defamation which was stayed pending resolution of the rest of the claims.  The Court is concerned that the parties have not litigated this portion in the lawsuit assuming no final judgment would be filed.

Order dated 4.25.18 by JASONCRUZ206 on Scribd

However, the World of Boxing presented a Notice of Presentment of Proposed Final Judgment last week for the Court to sign which would have allowed for WOB to present to the escrow agent and disburse funds back to WOB.

A telephone conference originally set for April 26th has been moved back to May 10th.  The parties are expected to address the situation.

Ahead of their teleconference, the parties were offered to address the issue in letter form to the court.

Wilder sent a letter dated April 24, 2018 to the court:

Letter From Deontay Wilder 4.24.18 by JASONCRUZ206 on Scribd

The biggest argument in the letter was that the Court’s April 19, 2018 Opinion and Order granting in part and denying in part the parties’ motions for summary judgment, had the effect of dismissing “all claims” except the defamation claim.  WOB’s attorneys noted, “Judge Gorenstein concluded that the Bout Agreement granted complete discretion to the WBC to decide any doping question in this case, which had the effect of overruling the jury’s verdict that Povetkin ingested meldonium when it was banned.  It also pointed out that the Opinion and Order did not direct entry of a final judgment.

In its letter, it argues that consolidated cases retain their separate identity “to the extent that final decision in one is immediately appealable by the losing party.”  Here, WOB cites the U.S. Supreme Court in Hall v. Hall.

On the same day, WOB responded:

Letter From WOB 4.24.18 by JASONCRUZ206 on Scribd

Wilder argued that the Hall case differed from the instant case.  Wilder’s attorneys argued, “[I]t would make no sense and ill-serve judicial economy to grant Defendants’ request for entry of two separate judgment on the same claims in two different cases.  To the contrary, such a result would sow serious confusion before this Court and on the appellate level, and there is no precedent to support that outcome.”

Payout Perspective:

 From WOB’s perspective, the argument by Wilder is seemingly a way to prolong the litigation to prevent WOB from receiving the millions of dollars kept in escrow.  The fundamental legal argument is whether the defamation claim is separate from the other claims made by the parties.  The U.S. Supreme Court case has varied interpretations by the parties.  Wilder believes that there should be one entry of judgment while WOB believes that there could be two judgments made for the one case.  Once again, it appears that the Court was not clear in its ruling as its Order deciding the Motions for Summary Judgment could have outlined the issue or gave guidance as to whether an entry of judgment should occur or pending the litigation of the defamation claim.  The question one might ask, is whether dismissing the claim would allow for this case to end barring appeal.  We will see May 10th.

What was the court thinking in Povetkin-Wilder?

April 26, 2018

The ruling in the Alexander Povetkin-Deontay Wilder case last week was a surprise for many that have been following the case.

Opinion and Order by JASONCRUZ206 on Scribd


The lawsuit was based upon a drug test which Povetkin failed in lead-up to a fight with Wilder in Russia.  Wilder did not travel to Russia after learning of the failed drug test.  Wilder first sued Povetkin and his promoter World of Boxing as a result of Povetkin’s failed test.  Povetkin filed counterclaims against Wilder for failing to go to Russia 7 days prior to the bout date to which Povetkin claims was a breach of the Bout Agreement.  He also filed defamation claims against Wilder for bad-mouthing the heavyweight after drug test results revealed he took Meldonium.

The Court opinion deciding the Summary Judgment motions relied on the Bout Agreement which was subject to the World Boxing Council’s Rules and Regulations.  It cited language in the Agreement which stated that “any dispute or controversy” would be bound by the Rules and Regulations of the WBC.

Another layer of this dispute revolves around purse money placed in escrow for the fight.  Wilder had written the escrow company to hold the money until a court decided the outcome.  Povetkin and World of Boxing objected to this and sued claiming a violation of the duty of good faith and fair dealing.  In addition, they claimed that Wilder had violated the terms of the Bout Agreement and should be subject to a liquidated damages clause of $2.5 million.  Wilder was due $4.5 million to fight Povetkin while Povetkin was due $1.9 million.  In addition, there was a $715,000 bonus for the winner.

In February 2017, a jury just took 32 minutes to determine that Povetkin took the banned substance Meldonium post-January 1, 2016, however that did not mean much in the outcome of this Summary Judgment motion.

One of the overarching issues in the lawsuit as to who is to blame for the failed fight in Russian in May 2016.  You might infer from the news of a failed drug test from Povetkin that it was the Russian.  However, Povetkin claimed that Wilder’s failure to appear in Russia forced the hand of the regulating body, the WBC, to call off the fight.

The WBC Bout Agreement takes precedent here as the Court examines the contract in applying basic contract principles.  But in its application, there seem to be things that don’t make sense.

“We begin by noting that the Bout Agreement contains no language mandating that each fighter refrain from ingesting banned substances.”

The inference one might yield from this sentence of the Court opinion is that tis ok to used banned substances.  Based on this, the Court held that Povetkin did not breach the Bout Agreement because it cannot conclude when/if he ingested the banned substance Meldonium. Obviously, this is opposite the jury finding.

The good news for Wilder is that there was no finding of a breach of the Bout Agreement when Wilder did not go to Russia for the fight with Povetkin.  The Court notes, “[t]here is simply no evidence that the WBC’s postponement decision was a “normal or foreseeable consequence” of Wilder’s actions, or that Wilder’s acts otherwise caused the WBC’s decision.”  Povetkin and World of Boxing sought $2.5 million in liquidated damages that was part of the Escrow Agreement.  “While the WOB Parties argue that it was Wilder’s failure to appear in Moscow, rather than Povetkin’s positive test result, that caused the WBC to postpone the Bout…no reasonable jury could indulge in the speculation that would be required to conclude that this was so,” stated the Court opinion.  It went on to state, “[B]ecause a reasonable jury could not find that any breach by the Wilder Parties proximately caused the WOB Parties’ damages, the Wilder Parties’ motion for summary judgment dismissing the WOB Parties’ claim for breach of the Bout Agreement is granted.”

As for the escrow funds, World of Boxing is entitled to its release held in escrow but no interest because no judgment was entered against Wilder.

The claims for defamation filed by Povetkin remain although they may be dismissed pending further movement in this case.

The Court opinion seems to fly in the face of the original jury finding that Povetkin took Meldonium post-January 2016.  The opinion seems to lean entirely on the WBC Agreement for its determination on its procedure in determining the status of Povetkin based upon his drug tests.  The Court quotes WBC Rules and Regulations when it notes, “the WBC may in its discretion consider all factors in making a determination regarding responsibility, relative fault, and penalties, if any.”

The WBC did not issue a ruling on Povetkin’s positive drug test until August 17, 2016.  It noted that it called the bout off and reserved any further ruling.  It then determined that it was not “possible to ascertain that Mr. Povetkin ingested Meldonium after January 1, 2016.  After two additional rulings by the WBC which opposed the August 17, 2016 ruling, it overturned the decision and stuck with its August ruling.  It based this on a study showing Meldonium having the ability to stay in one’s system for more than five months.  It also noted Povetkin had negative drug tests six other times.

The WBC seemed to be dragging its feet in this case as it put off the ruling on Povetkin despite the litigation moving ahead.  There’s also the issue of Povetkin’s positive test for ostarine which happened after the lawsuit began.  Yet, the WBC did not penalize him for this and even stressed negative drug tests notwithstanding the two positive tests for Meldonium and ostarine.

This ruling seems ripe for an appeal.  The jury verdict seems to fly in the face of the Court’s ruling last week which seemed to defer to the WBC’s handling of the Povetkin matter.  Wilder’s side may just put this case behind them unless Povetkin is allowed to pursue its defamation claim.

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